[157] A wrongfully dismissed employee has a duty to try to
mitigate her damages by making reasonable best efforts to
obtain a position that is reasonably comparable in salary and
responsibility to the one from which she was wrongfully dismissed. If she is able to secure such a position, her earnings are
deducted from her damages as mitigation.4 If she turns down
such a position, or fails to make reasonable best efforts, then the
amount she could have earned at a comparable position is similarly deducted from her damages, based on a failure to meet the
duty to mitigate. But if she can only find a position that is not
comparable in either salary or responsibility, she is entitled to
turn it down, and if she does, the amount she could have earned
is not deducted from her damages.

[158] It follows, in my view, that where a wrongfully dismissed
employee is effectively forced to accept a much inferior position
because no comparable position is available, the amount she
earns in that position is not mitigation of damages and need not
be deducted from the amount the employer must pay.

[159] It is always up to the trial judge to determine if the
employee has met her duty to mitigate. When a wrongfully dismissed employee accepts new employment during the notice
period, the question of whether or not to deduct those earnings
depends on the trial judge’s assessment of mitigation. If the trial
judge finds that the new job is comparable to the old one, the
earnings should be deducted as mitigation of damages. If the trial
judge finds that the new job is vastly inferior to the old one, such
that the employee would not be in breach of the duty to mitigate if
she turned it down, the earnings should not be deducted.

[160] In other words, the trial judge decides whether a job that
an employee takes, or turns down, amounts to mitigation of
damages. As my colleague states, at para. 98, only moneys that
are received in mitigation of the loss are deducted from the
damages award.

[161] In this case, the employee was not an executive who
could afford to live during the notice period without a salary. It
was in her interest to try to obtain a comparable managerial
position but she was not able to do so, and because she could not
afford to earn nothing, she had to take the only job she could
find. The trial judge determined that the job she found was in no
way comparable to her managerial position with the appellant.

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4 See, for example, the Honourable Justice Randall Scott Echlin and Christine M. Thomlison, For Better or For Worse: A Practical Guide to Canadian
Employment Law, 3rd ed. (Aurora: Canada Law Book, 2011), at p. 257.